SEMMOONCHI GOUNDER Vs. NAINA GOUNDER

JUDGEMENT

(1.) The defendant in O.S. 980 of 1974 District Munsif's Court, Salem is the appellant in this second appeal which has been entertained on the following substantial question of law :- 'Whether the suit is barred by limitation' ? The facts giving rise to this second appeal may be briefly set out as under - The suit property is an extent of 1 acre and 16 cents in R.S. 119/6 in Amami Selavadai village in Salem Dt. This property is stated to have belonged to deceased Naina Gounder (first plaintiff in the suit) as his ancestral property and the first respondent herein (the second plaintiff in the suit) is the wife of deceased Naina Gounder (hereinafter referred to as Naina Gounder for short) Respondents 2 to 7 in this second appeal are the legal representatives of Naina Gounder. Naina Gounder along with his two brothers and maternal uncle Vetraiva Gounder executed a nominal sale deed on 5-8-1935 in favour of one Chinnappa Gounder for the purpose of securing loan and that sale was subject to a right of re-conveyance. One Chinnappa Gounder insisting upon the repayment of the amount due to him, Naina Gounder and his brothers arranged for a re-conveyance in favour of one Subramania Chettiar from Chinnappa Gounder on 14-3-1946. Subramaia Chettiar executed on 29-4-1948 an agreement in favour of Naina Gounder to reconvey the suit property, if the sale amount of Rs. 1500 was repaid within a period of 10 years. Pursuant to the agreement, Naina Gounder was allowed to continue in possession of the suit property. Naina Gounder and his brothers jointly executed a lease deed in favour of Subramania Chettiar in lieu of interest due to him and since Subramania Chettiar insisted upon the repayment of money, Naina Gounder arranged for a reconveyance in favour of one P. Krishnan of Selavadi. Subramania Chettiar executed a sale deed in favour of Krishnan on 5-4-1956 according to the directions of Naina Gounder and that sale in favour of Krishnan was claimed to be subject to an agreement of sale and Krishnan also is stated to have undertaken to convey the property, if the amount of Rs. 3500 was repaid to him. Naina Gounder and his brothers negotiated with Krishnan and on receiving Rs. 1000 orally relinquished their right in respect of their 2/3 share and arranged for a re-conveyance of 1.16 acres in S. No. 119/6 and an one-third share in the well in favour of the appellant after getting a loan of Rs. 1300 from him. The further case of the said Naina Gounder and the first respondent herein was that the appellant specifically agreed that he would execute a conveyance in favour of Naina Gounder and the first respondent if an amount of Rs. 1300 was repaid within a period of ten years and an agreement dt. 12-6-1959 was also executed by the appellant. Naina Gounder and the first respondent were further allowed to continue in possession pursuant to this agreement dt. 12-6-1959. Naina Gounder and the first respondent claimed that they were residing in the house put up in the suit property and that it fell to the share of Naina Gounder, who undertook to discharge the debt due to the appellant. It was also stated that Naina Gounder and the first respondent were ready and willing to perform their part of the agreement and that when they requested the appellant to receive the sale price and execute a sale deed on or before 15-8-1968, he instituted a false suit in O.S. 856 of 1968 District Munsif Court, Sankari at Salem for a permanent injunction restraining the said Naina Gounder and the first respondent from interfering with his possession. That suit was decreed and an appeal therefrom was preferred by Naina Gounder and the first respondent in AS 88 of 1972 and the issue whether the agreement dated 12-6-1969 is true and binding, was left open by the appellate court to be decided in a separate suit. Thereafter, Naina Gounder and the first respondent herein, after securing a return of the documents filed, on 24-7-1974 instituted OS 980 of 1974 District Munsif Court, Sankari at Salem, praying for the specific performance of the agreement dt. 12-6-1959 and for cost.

(2.) In his written statement the appellant contended that the sale in his favour was not subject to a right of re-conveyance and the claim of Naina Gounder that he and his brothers arranged for a re-conveyance from Chinnappa Gounder to Subramania Chettiar on 14-3-1946 was false. Stating that he purchased the property for a sum of Rs. 1300, the appellant denied the agreement to execute a sale deed if the amount of Rs. 1300 is repaid within ten years. The appellant while refuting the agreement dt. 12-6-1959, also characterised it as a rank forgery and further stated that Naina Gounder and the first respondent handed over possession of the suit property and that from the date of purchase, the appellant continued to remain in possession and enjoyment of the suit property. The claim of Naina Gounder and the first respondent that they were residing in the suit property and Naina Gounder undertook to discharge the debt due to the appellant was denied. The appellant further pleaded that he was not liable to execute the sale deed, as there was no agreement.

(3.) In the additional written statement, the appellant raised the plea that the suit is barred by limitation.